Week 5 Flashcards
Section 43 of the JDA, direction on ___________
prosecution not calling or questioning witness (Jones v Dunkel reasoning)
TJ may only direct the jury on s 43 if satisfied the prosecution:
(1) was reasonably e______
(2) has not s__________
(1) expected to call or question the witness
(2) satisfactorily explained why it did not call the witness
Under s 43 of the JDA, the TJ may inform the jury it may conclude that the witness would not ___________
have assisted the prosecution’s case
If there was a good reason not to call a witness, the Crown may call for a (what type of direction)
Anti-speculation direction
An anti-speculation direction guards against the jury instinctively using (what kind of reasoning)
Jones v Dunkel
If the rule in Browne v Dunn is breached, the remedies are:
(1) _________, s 46
(2) a prohibition on leading _________ in breach of the rule, ss 135/137
(3) a direction may be given, which is ______
(1) recall the witness
(2) evidence
(3) rare
A direction regarding Browne v Dunn may only be given where:
(1) leave to recall was not ________
(2) and the breach was ______
(1) practical
(2) significant
A direction about a Browne v Dunn breach may be about:
(1) using the breach to assess the _______
(2) using the breach to infer recent _______ (very rare in criminal trials)
(1) weight of the evidence
(2) invention
In MWJ v The Queen (2005) 222 ALR 436, there was inconsistency between the complainant and her mother. The HCA held that this was the ___________’s job to remedy if they wanted to.
prosecution’s job
Section 38 is
Unfavourable witnesses
Section 37 - rule about ______
leading questions
Leading questions may be asked in XN/REXN if:
(1) The Court ________
(2) relates to a matter _______ to the witness’s evidence
(3) no objection is made by the other party and the other party is _____
(4) the matter is not ______
(5) expert witness and the question is for the purpose of obtaining their ______
(1) gives leave
(2) introductory
(3) represented
(4) in dispute
(5) opinion
A leading question is (Dictionary):
(a) directly or indirectly __________
(b) assumes the existence of a fact, the existence of which is in dispute, and the existence of which the witness has not yet _______
(a) suggests a particular answer to the question
(b) given evidence before the question is asked
Under s 38, a party with leave of the Ct, may XXN a witness if:
(1) evidence of the witness is ______, or
(2) the witness is not making a __________ to give evidence on matters they may reasonably ______________, or
(3) made a _______
(1) unfavourable
(2) genuine attempt / be supposed to have knowledge
(3) prior inconsistent statement
Evidence is ‘unfavourable’ if it is:
(1) not _______
favourable
“Unfavourable” does not mean “adverse” in the sense of _____
“hostile” (DPP v Garrett [2016] VSCA 31, [64]-[66]
The TJ in considering whether to grant leave to XXN under s 38 may consider:
(1) whether the party gave ______ at the earliest opportunity of its intention to seek leave to XXN, and
(2) the matters and extent to which the witness has been or is likely to be questioned by another party
(1) notice
Evidence will ordinarily be “unfavourable” if:
(1) it is i______________ with, or
(2) c__________
(1) inconsistent
(2) contrary
In determining whether the evidence is unfavourable, is the TJ required to consider the whole of the evidence?
No (Garrett)
Prior inconsistent statements made by an unfavourable witness may be admissible under which section to prove the facts contained in it?
Section 60
The HCA case of Adam [2001] HCA 57 stands for the proposition that when XXN a witness under s 38(1)(c) (to put evidence of a PIS), that evidence can be tendered for ________
the truth of what was said in the prior inconsistent statement
Sako’s evidence in Adam (HCA) was unfavourable because:
(1) in his interview with police, he spoke of what happened as if recollecting his own observations
but, on the voir dire, the general tenor of his evidence was that he had seen nothing of great moment and what he told police was _______
what he had been told by others
XXN must occur after XN unless otherwise directed (s ____) and takes the form of leading questions (s _____)
s 28
s 42
Improper questions not permitted by which section?
s 41
Process for prior inconsistent statements is in which section?
s 43
Credibility evidence is defined in which section?
s 101A
The credibility rule is in which section?
s 102
The credibility rule (s 102) is that “credibility evidence” is ____________
not admissible
Credibility evidence is evidence that is (s 101A):
(1) relevant only to ______ OR
(2) relevant to credibility and some other purpose, but it is _____ admissible for that other purpose
(1) credibility
(2) not
The major exceptions to the credibility rule in s 102 are in which sections:
(1) evidence adduced in XXN (ss ____ and ____)
(2) evidence in rebuttal of denials (s ____)
(3) evidence to re-establish credibility in REXN (s ____)
(4) evidence of persons with specialised knowledge (s ___)
(5) character of accused (s ____)
(1) ss 103 and 104
(2) s 106
(3) s 108
(4) s 108C
(5) s 110
Under s 106, if a witness rejects a challenge to his or her credit, can the party challenging the witness call other evidence to attack the witness’s credit
Yes
Section 41 of the JDA is the direction on the accused ________
not giving evidence or calling a witness
Defence counsel may request a s 41 direction (JDA) that:
(1) it is for the ________ to prove that A is guilty BRD
(2) the accused is not required to give evidence/call witnesses and the jury should not s_____________ on what evidence might have been given
(3) the fact that A did not give evidence:
- is not evidence against A
- is not an admission
- is not able to be used to fill gaps in the pros case
- does not strengthen the _______
(1) prosecution
(2) speculate
(3) prosecution case
Section 43 of the EA is about cross-examining witnesses about _________
prior inconsistent statements
Evidence adduced by an accused to prove that he is generally or in a particular respect a person of good character is not subject to which rules:
1 ____________
2 ____________
3 ______& _____
1/ Hearsay
2/ Opinion
3/ Tendency and Coincidence
If the accused has adduced good character evidence (and it has been admitted), if granted leave under s 112, the pros can XXN the accused to adduce evidence that the accused is NOT a person of _______
Good character
Excluding the tendency rule from s 110(2)-(3) means that at the very least, tendency evidence can be used to n_______ good character evidence
neutralise
Good character evidence is not merely evidence as to credit. It is evidence that could rationally affect (directly or indirectly) the assessment of the probability that the accused c_________________
committed the offences charged
Good character - pros cannot submit that child sex offences cut both ways - that people might use charitable work in order to _______
access vulnerable young children for the purpose of sexual offending
Good character - pros can XXN a character witness to suggest that the accused might have acted in a certain way when the witness was not ________
present
In Saw Wah v The Queen [2014] VSCA 7, the CoA endorsed the common law approach (at footnote 20) that bad character evidence adduced to rebut good character evidence may not be used to reason that the accused was ______________
more likely to have committed the offence because of his bad character
Good character - leave to XXN the accused re good character evidence will only be granted if:
(1) the accused i______ and d______ adduced evidence of his character.
It is for ___(who)___to determine whether good character evidence has been raised.
(1) intentionally and deliberately
(2) the trial judge
If leave granted to the pros to adduce bad character evidence, the court still retains a __________ to exclude.
E.g., low probative value outweighed by highly prejudicial nature of the evidence/ where accused denies the allegations
discretion
In Omot v R, the accused called good character evidence to show he had no priors for sex offence. Pros was permitted to call evidence of accused’s convictions for violent offences in rebuttal because the allegations involved violent sexual assaults and without the rebuttal evidence, the character evidence would give a f_____ i_____ of the accused
false impression
